COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74045 ROBERT J. GREEN : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION BRIDGETTE LEWIS, et al : : PER CURIAM Defendants-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 3, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 327,424 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: LISA J. SLATTERY Attorney at Law Mentor 306 Building, #25 8039 Broadmoor Road Mentor, Ohio 44060-7577 For defendants-appellees: VALERIE D. DOVE Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 PER CURIAM: -2- This cause came on to be heard upon the accelerated calendar pursuant e Cuyahoga County Court of Common Pleas, and the briefs. Appellant filed this appeal contending the trial court erred when it ruled on appellees' motion for summary judgment before the thirty days in which appellant had to oppose the motion had passed. Because appellant's argument has merit, we reverse. Appellto App.R. 11.1 and Loc.R. 25, the records from thant Robert J. 1997 against appellees Bridgette Lewis, the City of Cleveland and State Farm Insurance Company.1 The trial court thereafter conducted a case management conference pursuant to Loc.R. 21. At the case management conference, the court established a deadline of November 19, 1997 for the filing of dispositive motions and also set a final pretrial date of January 21, 1998 and a trial date of February 2, 1998. On December 12, 1997, appellees filed a Motion for Leave to File Motion for Summary Judgment, Instanter, to which was attached a copy of their motion for summary judgment. The trial court granted appellees' motion for leave on January 12, 1998. On January 22, 1998, the trial court granted appellees' unopposed motion for summary judgment.2 1 State Farm Insurance Company was dismissed on October 16, 1997 and is not a party to this appeal. 2 Appellant subsequently filed a motion for relief from judgment, which was denied by the trial court. Only the trial court's January 22, 1998 entry granting appellees' motion for summary judgment is the subject of this appeal. -3- Appellant filed his notice of appeal on February 27, 1998.3 Appellant's sole assignment of error contends: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS- APPELLEES CITY OF CLEVELAND AND BRIDGETTE LEWIS' MOTION FOR SUMMARY JUDGMENT, INSTANTER. Appellant argues the trial court erred when it granted appellees' motion without permitting appellant thirty days in which to file his opposition brief. Loc.R. 11(I) provides: Unless otherwise ordered by the Court, motions for summary judgment shall be heard on briefs and other materials authorized by Civil Rule 56(C) without oral argument. The adverse party may file a brief in opposition with accompanying materials, within thirty (30) days after service of the motion. This court has previously determined that Loc.R. 11(I) is not in conflict with any rules governing practice and procedure promul- gated by the Ohio Supreme Court and is therefore valid. Higgins v. McDonnell (1995), 105 Ohio App.3d 199, 202, citing State ex rel. Henneke v. Davis (1986), 25 Ohio St.3d 23. Since the trial court did not inform appellant that his response time would be reduced, appellant had thirty days beyond the service of the motion in which to file his brief in opposition to appellees' motion for summary judgment. See Higgins, supra at 202. It is well settled that Ohio Civ.R. 56 permits a motion for summary judgment `only with leave of court' if the case has been set for trial or pretrial, and not as a matter of course. State 3 After an initial sua sponte dismissal pursuant to App.R. 4(A), this court thereafter reinstated the appeal upon appellant's motion for reconsideration. -4- ex rel. Lantz v. Indus. Comm. (1993), 66 Ohio St.3d 29, 31. In the matter sub judice, the lower court had issued an order establishing a deadline for the filing of dispositive motions and designating dates for both a final pretrial and a trial. Since the deadline originally established by the trial court for filing dispositive motions had passed and a final pretrial and trial date had been set, appellees were required to obtain leave of court before filing their motion for summary judgment. (Emphasis added.) See Lantz, supra; Civ.R. 56(A). Therefore, until the lower court granted appellees' request for leave, appellees could not have properly filed a motion for summary judgment and served it upon appellant. The lower court expressly granted appellees' request for leave on January 12, 1998. Thus, even if appellees filed their motion for summary judgment immediately after receiving leave to do so, the earliest date upon which the motion could have been considered to be filed and served was January 12, 1998.4 The trial court erred when it ruled on appellees' motion for summary judgment on January 22, 1998 since it clearly did not allow appellant thirty days to respond to the motion as provided in Loc.R. 11(I). Appellant's appeal is well taken. 4 Relevant to the instant appeal, this court need not address whether appellees were required to file their motion for summary judgment after being granted leave to do so when a copy of the motion was attached to their motion for leave to file motion for summary judgment. Previously, this court has held that it is within the discretion of the trial court to deem the motion attached to the request as being filed. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 377. -5- This matter is reversed and remanded to the trial court for disposition consistent with this opinion. -6- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant recover of appellees his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. __________________________________ PATRICIA A. BLACKMON, ADMINISTRATIVE JUDGE __________________________________ KENNETH A. ROCCO, JUDGE __________________________________ MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .